Sanctions Sought Under 28 U.S.C. § 1927 Over Search Term Dispute
Following a dispute regarding search terms, the plaintiff in Leach Farms, Inc. v. Ryder Integrated Logistics, Inc., Case No. 14-C-0001 (E.D. Wisc. Jan. 26, 2015) sought sanctions pursuant to 28 U.S.C. § 1927, contending that Defendant’s refusal to agree to Plaintiff’s requested search terms unnecessarily increased Plaintiff’s litigation costs.
Defendant had requested that Plaintiff produce ESI, including email communications. Plaintiff performed its initial collection by searching for customer names when they occurred with a specific set of search terms. Defendant contended that Plaintiff’s search was too narrow, and requested that Plaintiff redo its collection by searching for the customer names on their own (without the limiting search terms). Plaintiff objected, claiming that the requested search was too broad, and would result in collection of irrelevant and duplicative documents. Nonetheless, faced with either filing a motion for a protective order or conducting the broader search, Plaintiff agreed to Defendant’s request, and made the expanded production (consisting of 16,102 documents) available to Defendant via a searchable electronic database. After Defendant completed its inspection of the database, Plaintiff noted that counsel had only opened 4,107 documents, or about 25 percent of the total database.
Plaintiff sought sanctions under 28 U.S.C. § 1927, which provides that “[a]ny attorney or other person . . . who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Plaintiff alleged that if Defendant had agreed to Plaintiff using the narrower search terms, Plaintiff would have incurred less cost in collecting, reviewing, and producing the documents. Plaintiff argued this refusal by defense counsel was unreasonable and vexatious, and asked the court to hold counsel personally liable for fees and costs as sanction.
Although the court agreed that Plaintiff’s request may have been reasonable if Defendant had reviewed the documents in the database by using one search, the court found it persuasive that Defendant had decided which documents to review by using “multiple, evolving searches, which were refined as the document review progressed.” The court noted that Plaintiff would have likely objected to doing these “evolving” searches itself, and accordingly, the court denied Plaintiff’s request for sanctions.